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Berta last won the day on April 23

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About Berta

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    PLEASE post questions in the main Forums
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    Beautiful hills of NY andwidow of  2 vets, 2 HD each and mother of USAF vet-my daughter, 7 years Top Secret Intel
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  1. "Could negligence be considered as the VA prescribing me NSAIDs for decades instead of in smaller brief periods?" Certainly it the VA knew of the risks of NSAIDS in those links above and how they can cause heart problems. "I assume that for 1151's, it is not best to let the VA formulate their own opinion. Or, if I file and win approval for the regular secondary claim, might that suffice? " Yes, filing as secondary might suffice. If not there is no time limit on a 1151 claim. "I assume that for 1151's, it is not best to let the VA formulate their own opinion. " That's right- they even got a Doctor to opine that my husband died possibly of a cocaine overdose. He (they named the doctor in the decision)was very upset when I called him up- he had no idea the VA had the full 6 page autopsy which included a toxicology report because he was an organ donor. My husband didn't even drink- the only meds he took were prescribed by the VA.Psuedoephdrine for sinus problems which the med recs revealed he did not have, which contraindicated the lisinopril for his HBP which was at the wrong dose.I also proved that the Switch and Swallow they sent him by mail for years was not for what they told him it was for, It was for, as I proved, oral candidiasis ,that he incurred due to high elevates of sugar in his saliva. One more thing to prove he had DMII and the VA knew it. I am waiting for a C & P in which some quack formulated an opinion that was so ridiculous- and did not even consider the opinion I had, that when I get the actual opinion- thought it would be here by now- I am filing a complaint with the WH Hot Line, and with the firm he/she came from. I actually do not even believe a real doctor or anyone with any medical background , did the opinion. I mentioned that to 3 or 4 people in the VA system recently and they did not seem shocked when I said that.
  2. "How could this be considered a Section 1151 claim?" If it fits into the Section 1151 , 38 USC criteria : In part: "U.S. Code Title 38. VETERANS’ BENEFITS Part II. GENERAL BENEFITS Chapter 11. COMPENSATION FOR SERVICE-CONNECTED DISABILITY OR DEATH Subchapter VI. GENERAL COMPENSATION PROVISIONS Section 1151. Benefits for persons disabled by treatment or vocational rehabilitation 38 U.S. Code § 1151.Benefits for persons disabled by treatment or vocational rehabilitation U.S. Code Notes Authorities (CFR) prev | next (a)Compensation under this chapter and dependency and indemnity compensationunder chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran’s willful misconduct and— (1)the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by theSecretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was— (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable; or (2) the disability or death was proximately caused (A) by the provision of training and rehabilitation services by the Secretary (including by a service-provider used by the Secretary for such purpose under section 3115 of this title) as part of an approved rehabilitation program under chapter 31 of this title, or (B) by participation in a program (known as a “compensated work therapy program”) under section 1718 of this title." https://www.law.cornell.edu/uscode/text/38/1151 There is more but that involves FTCA offset stuff. "Can a veteran file both an 1151 and regular/secondary claim for the same issue?" Yes- because we can file under any potential theory of entitlement.One might not work , but another theory of entitlement could. might I had a BVA appeal once that the BVA dismissed as moot. I had filed under two theories, probably under direct SC and also 1151- I have had 4 main 1151 claims. The BVA dismissed because I had won that claim at the RO level and didnt know I could have withdrawn the I-9 appeal. It might have been the initial 1151 DIC award I got. VA fights 1151s aggressively. I didnt have a lawyer or any IMO when I filed my wrongful death FTCA claim. My evidence was impeccable- I have a pro se background, but it was heartbreaking to discover how poorly the VA had treated my husband. He filed a Section 1151 claim before he died. Then Pres Clinton said in a speech that the VA was the best Gov run health care system in the world and my husband thought he better withdraw his claim until I reminded him that Clinton had to be taught to salute- what did he know about the real VA- nothing. I used the regulations for the basis of the claim he dictated to me, and then I used it for my formal DIC claim. It was the same "cause of action" I used for my FTCA claim. My VARO, even with a copy of my settlement with the USA (under auspices of VA) ignored that and denied my 1151 claim again. I did have an offset factor but I still needed a formal DIC award under 1151, when the offset factor had been deducted.I called the OGCand told them they owed me more money-they really didnt but it got their attention. The OGC sent my VARO an order to grant the 1151 DIC. It is almost impossible to get a 1151 award without a strong medical opinion. In your case there have been strong studies as to the negative affects of NSAIDs. "I was recently diagnosed by a non-VA endocrinologist as having Cushing's. I filed a claim earlier this year for it along with a letter from her stating that is was caused by steroids used to treat my asthma and spine issue (both of which are service connected). " That too sounds like a strong claim, either under 1151 or secondary to the asthma if that is SC. ." I asked the cardiologist if Cushing's could be a factor and he said no. However, I found plenty of articles online showing that is can be a factor." I am not surprised at that. One point I need to make as to 1151 claims-there is plenty info here at hadit on them- I proved that VA took "acts" and caused "Omissions of Acts , " that were not consistent with those of the standard medical community for my FTCA and my 1151 claim. Acts and Omissions of acts is legalize and it all meant that no real doctor would have taken the steps the VA did, regarding diagnosis or treatment, even though they ( VA) could have,at some point, properly diagnosed and treated my husband. The result of these acts and omissions of acts caused his untimely death at age 47. The very first peer review they did caused the Regional Counsel to call me up within months of receiving my 1151, to discuss a settlement based on a probative Peer medical review-the doctor who did that agreed with all of my charges on the prime cause of death. But suddenly the RC,the doctor , and the review disappeared and I had to start all over again with the OGC.That was OK- when I found out what the VARO withheld from them I faxed it to them and I won. When I discovered another disability they had malpracticed on-because my daughter insisted I file another claim, DMII from AO, I filed that as a direct SC claim. No diagnosis and no treatment whatsoever from VA. I provided Dr Bash with a timeline and with referrals to specific records and I had a freebee brief opinion from a former VA Neurologist who had left the VA. His entry to confirm diabetes had been crossed out. I could not claim the same death due to 1151 on a different theory than what I had alredy won on. So I filed it as direct SC death. It was the most important claim I ever filed and brought with it numerous other ancillary benefits- even a Chap 35 refund of my college tuition and also the REPS Benefit. No diagnosis and no treatment whatsoever. He should still be alive and here with me on line. He tried to help vets on the old Prodigy web site circa 1990. If you do file either way or both, this will take a strong independent medical opinion. His malpracticed AO IHD heart disease as well was never rated by VA until I won my Nehmer claim-that grew out of a CUE I had filed in 2004, still sitting at my VARO in 2012, set for BVA transfer..... Which should never take 8 years.I call that VARO malpractice. That's OK.I won that 1151 CUE claim anyhow.
  3. Yes it is Very encouraging- he thanked me for my advice and support but I dont recall what advice I gave him- except I knew he had a strong 1151 basis and I rcommended Dr. Bash, who gave him an excellent independent opinion. But that was years ago- then again we both deal with Buffalo RO and they cant read.
  4. There is plenty of recent news on the association of long term NSAIDs use and heart attacks: https://www.health.harvard.edu/blog/fda-strengthens-warning-that-nsaids-increase-heart-attack-and-stroke-risk-201507138138 https://www.mayoclinic.org/diseases-conditions/heart-attack/expert-answers/nsaids-heart-attack-stroke/faq-20147557 and I guess the VA has to issue this warning on every Prescription for NSAIDS: https://www.pbm.va.gov/PBM/vacenterformedicationsafety/nationalpbmbulletin/NSAIDS_and_CV_Safety_NATIONAL_PBM_BULLETIN_080415_FINAL.pdf "I only partially remember visiting the VA cardiologist last week, but do remember him saying the NSAID use is a major factor in having a heart attack. He also said he could tell I had a heart attack by just looking at my EKG." Did he take a notation of that fact in your medical records? In any event this is a strong basis for a Section 1151 claim. Or a claim for disability due to treatment of a SC condition,like what you have- maybe best to file both ways. My husband's initial heart attack,evident when I learned how to read his EKG, was diagnosed as a heart attack by me. The VA called it a sinus infection. It was the prime cause of his death ( under 1151, and FTCA) and a ECHO revealed more damage, but VA never acknowledged it or rated it until I filed CUE in 2004 and then the Nehmer AO RO awarded it, 21 years after he died. Vync said: " If things go downhill, the additional rating might make it easier to qualify for some level of SMC, A&A, or even SSDI." Yes! When you got the 100% did you apply for SSDI at that time? Even though you are recovering, you are being proactive and it is amazing what a medical record review can find. I must have reviewed my husband's VA med recs dozens of times, before I filed SF95 and 1151( he had filed the originl 1151 claim himself) I had to learn all sorts of medical ancronyms and how to decifer handwritten entries, EKGs and ECHOs, as well as to determine the day the malpractice began (Aug 13, 1988 ) and to prove it continued until he died in October 1994.My FTCA involved 3 other malpracticed issues, transcient ischemia , Stroke, and HBP,and then my daughter while still in the Military kept asking me to file for DMII due to AO. I didnt think he could have had DMII until she mentioned a few things to me-that seemed to be symptomatic of diabetes. Finally (I did not want to deal with VA again) I opened the stack of medical records, reviewing them again, many times---and I kept overlooking a crossed out entry. When I realised I might be able to deficer it, it did, it was an entry to" confirm diabetes".The neuro doctor's entry was crossed out by the head cardio doctor at Syracuse-who lied to me about my husband's condition.They had just done an ECHO a few days prior so I asked the cardio doc about it , and he said = after an odd pause= that there was "nothing" wrong with his heart. That pause always bothered me because now I know they were already covering up all the misdiagnosed conditions that occurred at the Bath VAMC. The Echo revealed significant heart disease. It sure pays to make sure you have copies of ,as they are done, your medical records. In my case my daughter's insistence is why I re opened my claim. I won. It was a BVA decision because my RO refused to consider my evidence.I should have cued them( my RO) but I had just started AMU to finish my degree and I knew the BVA would award the claim. Even a family member can often help with reading medical records. Sometimes if something does not seem right- there might be something drastically wrong. Watch your meds as well. They gave my husband contraindicated medications.
  5. I met a vet here on the older board many years ago and we corresponded from time to time about his issues- and after 35 YEARs he finally succeeded in getting a proper resolve.His claims included direct SC, CUE , as well as an 1151 issue. The BVA reversed a past decision and the cash is in the bank- a Very large retro amount- he has not gotten the formal award letter yet. He dealt long ago with the same RO I deal with and in those days I tried to help him all I could because we both were dealing with idiots at this RO. Maybe the best thing I could do is give him encouragement- and he was as proactive as he could be. He also had a solid IMO for at least one claim. I wish it was not true but ,if we do not know basic VA case law and the regulations that control our claims,and are not willing to fight back, and continue to collect as much evidence as we can, all very difficult for anyone disabled as it is, our claims will be doomed. But this vet I heard from today and I both have received multiple denials in the past yet we never gave up.That is the secret to success-persistence and evidence.
  6. Can anyone else here read the scans and opine on them? I hope they see what I saw----- it didnt make sense.Not because it is a little out of order- because of their rationale- Do you have a copy of the initial denial and a copy of the C & P exam that denied the claim? I also saw that they considered this as a re=opened claim- and gave you the proper EEDs for a re -open but they called the TBI and PTSD exams the"initial "exams- for this award yet they denied in the past-that is why I asked about the copies of the older denial and the C & P exam they did then.
  7. The Military still uses CS gas . I could not find anything at the BVA that showed a claim based on CS exposure. It might not have any relationship to the collapsed lung- I think every vet here has had the gas chamber drill-maybe more than one, even my daughter did. This was the only article I could find that mentiones long term affects on CS on the respiratory system: “CS‐induced respiratory illness during military training Unexpected respiratory risks linked to tear gas exposures were discovered in epidemiological studies by the U.S. Army, analyzing health effects in more than 6000 army recruits exposed to CS in chambers during gas mask–confidence training. This relatively young and healthy population developed a high risk of presenting with acute respiratory illness in the time after CS exposure, with increasing risk at higher exposure concentrations.35, 36 Exposure levels considered for many years safe and necessary for training were determined to far exceed the National Institute for Occupational and Safety and Health and Occupational Safety and Health Administration safety levels.37 These findings led to immediate measures limiting exposure concentrations and times, improving decontamination procedures, and imposing frequent hygiene and health monitoring. Measures of respiratory illness included throat pain, cough, bronchitis, nasopharyngitis, sinusitis, and other indications. CS exposures were also associated with an increase in respiratory infections, including influenza. Follow‐up studies demonstrated that lowering CS exposures during training effectively reduced the risk for respiratory illness.38 Whether these lower concentrations are also safe for diverse civilian populations remains unclear. Follow‐up epidemiological studies in military populations would represent a unique opportunity to identify potential long‐term health effects of tear gas exposures.” https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5096012/ This study was published in 2016. It certainly could compound asthma, maybe even cause asthma and maybe this is why the VA SCed the asthma you have because it was part of the MEB anyhow. With a full review of your STRS and subsequent medical records, and the rationale of the past denials, a lawyer would be able to spot CUE right away if one occurred. They would need to look for any NSC rating percent for what is now SC , and compare those percentages to the Schedule of ratings in affect at time of the decision.
  8. Something did trigger the VA to SC the panic/anxiety, that they denied regarding the 2005 claim. "I talked to my Lawyer about CUE and he had felt that in 2005, I was missing the Nexus, even though I had a letter from the VA Psychiatrist in Phila. that connected my Panic/Anxiety Disorder to the collapsed lungs I had during Active Duty. " Did the VA have that letter before they denied? Is it in the 2006 denial evidence list? Or maybe it was this ? "Drove myself to local ER....ran in, recognized the nurse, Eileen, told her can't breathe."...... "They told me it was a Panic Attack" These are two critical things your lawyer needs to consider if a CUE can be filed when they first denied, or filed on the Reconsideration denial. CUE rests on what is in VA's possession at time of the alledged CUE. I didnt even have to make that point or quote the regulations for that , in my SMC CUE. They had evidence of my husband's 1151 stroke, and evidence noted on the rating sheet of his past 100% P & T SC PTSD award yet they failed to consider SMC. My most recent CUE was under 38 CFR 4.6 - no need there to rattle off any more regulations for that one either : They had medical evidence in VA's possession,since 1998, that I sent to them again, denied and than awarded in less than a month under CUE. Obviously you didnt get panic attacks by going to a C & P exam. But they gave you C & P dates as the EED. The only way I foresee a better retro EED is under CUE. But your lawyer will have access to all of the info regarding the points I made. Apparently the VA finds no residuals of the lung collapse.Or never gave you a C & P for that. "Doing research in the last 5 years, I believe the collapsed lungs may have been caused by the fire bldg. at Great Mistakes. They made us take off the Mark IV mask and feel our way out. Something nasty in that smoke. The Chemical Attack bldg., we nicknamed it Suzy Q. I found out that they used CS Gas. Same drill. This is what I suspect caused both lungs to collapse while at A School in Damneck, VA." Did you ever attempt to find anyone in your unit who experienced the "Suzy Q" situation.
  9. " I am Rated combined 60%; 50 for panic/anxiety and 10 for asthma. I'm also getting SSDI" Were you Mebbed for the panic anxiety disorder? Were you mebbed for the asthma? If so, how could VA deny in the past? If you get SSDI solely for one of or both of those two disabilities, this is excellent evidence for TDIU. Is VA aware of that SSA award? When were they aware of it? "I need to cool my jets." Yes, this stuff can get us into a frenzy. But I think you are anticipating some potential VA landmines-I learned to do that myself. It is unfortunate to say this and some of the Best people I know work for the VA, but many of us hard core claimants have learned to expect lousy decisions, that are not based on established evidence or fact.
  10. I found a few more- this veteran got 100% Temp Comp for the one year period "The evidence of record reflects that on August 29, 2011, the Veteran underwent a right knee total arthroplasty. He was granted a 100 percent temporary total rating beginning August 29, 2011, until October 1, 2011, and then a 100 percent rating for one year, until October 1, 2012, pursuant to DC 5055. Since then, he has been in receipt of a 30 percent rating for his right knee disability." and then after a revision , he received a temp comp extension: "ORDER Entitlement to an extension of a 100 percent rating for a right knee total arthroplasty to February 1, 2013, is granted." https://www.va.gov/vetapp15/files1/1502128.txt I used this search feature which might help you- but then again you do not know what the results of the next surgery will be: https://www.index.va.gov/search/va/bva_search.jsp?QT=knee+replacement+&EW=surgical+revision&AT=temporary+compensation&ET=&RPP=10&DB=2019&DB=2018&DB=2017&DB=2016&DB=2015
  11. That seems to be what happened to this veteran: https://www.va.gov/vetapp18/files4/1826111.txt It is the only BVA decision I have found so far that mentions a revsision of prior knee surgery. ORDER Entitlement to an evaluation in excess of 20 percent for postoperative right knee disability due to subluxation prior to November 13, 2009, is denied. Entitlement to a separate evaluation 10 percent from November 25, 2008 to February 9, 2009 for postoperative right knee disability due to degenerative arthritis, is granted Entitlement to an evaluation in excess of 10 percent prior to November 13, 2009 for postoperative right knee disability due degenerative arthritis with limitation of flexion, is denied. Entitlement to a separate evaluation in excess of 10 percent prior to November 13, 2009 for postoperative right knee disability due to limitation of extension, is denied. Entitlement to an evaluation in excess of 40 percent from January 1, 2011 to February 16, 2015, from April 1, 2015 to December 23, 2015, and since February 1, 2017, for total knee replacement, postoperative right knee disability, is denied. Only one issue was granted but the decision shows you what the ratings can be, depending on medical evidence after the surgery. This veteran did get one year of 100% temp comp, correctly- I dont know, and it is really hard to even guess, if the revision you expect would warrant another Temp Comp rating. https://www.va.gov/vetapp18/files4/1826111.txt
  12. https://www.vba.va.gov/pubs/forms/vba-21-4142-are.pdf I asked this question before but never got any answer- Is this the form a vetern would use for VA to obtain their private medical records? The form was a little different 25 years ago when my husband signed it, to give VA permission to get his SSDI records. An SSDI award contains an independent medical opinion that can be very significant to any vet claiming TDIU. VA has , (only a few times I hope) ignored this form and the Evidence list would reveal the fact that they never obtained specific records. They (VA) told me in writing that the SSA refused to release my dead husband's records. It was a lie.They also told this lie,( I still have the letters) to my Senator and Congressman. His C file revealed his signed authorization form to get these records. I was on the phone with SSA Baltimore for quite sometime, only to learn VA never had requested them. I raised a ruckus and they got them. This happened long ago-but my husband could have seen his 100% P & T PTSD award in his lifetime. Due to their error in not getting the SSA records, he died at only 30 % SC PTSD. After VA denied my accrued benefit claim ( he had asked for higher PTSD rating and sent them a TDIU form) I saw right away that the SSDI award solely for PTSD was missing. And I also noticed the decision did not have his most important psych records.I went right over to the VAMC and got copies of his MH records and showed the Dr his SSDI award letter. With that info the VA awarded the accrued PTSD claim, sooner than later .I dont think they can award TDIU to a dead veteran, so they properly awarded 100% P & T due to SC PTSD. We have a vet here who said VA told him they dont have his VA records.But he got them from the VA himself. They did the same thing to me, after my huband died.He had been treated in 1983 and diagnosed with PTSD at Newark VA.I had seen those Newark records at the SSA office and they were what prompted his initial SC rating for PTSD. I raised a ruckus and they 'found' them. We must be proactive when anything on a decision letter and their evidence list does not seem to be right. If that is not the right form, please let me know.
  13. " I have only been to the VA a couple of times because I usually go to my Naval Health Clinic doctor so I don't have a lot of VA records to begin with" Is the VA aware of those records? Did they send you an authorization form to give them permission to obtain them?
  14. Since you were MEBed out with a disability I cannot imagine why your initial claim was denied??????? You dont need an attorney to file a Mandamus writ but they are 99% of the time , denied. If you do file one, then lawyers will contact you- but as soon as they hear it is a writ, they wont offer to help. The US CAVC web site shows what I mean, as to how many writs go no where. There are better ways to address VA errors. "We may have discussed it in the past but my original claim in 2005 has the same disabilities that I had claimed in 2013 and was granted 50% SC. " Can you scan and attach here that decision and their evidence list? Cover your C file # , name, address, prior to scanning it. "I talked to my Lawyer about CUE and he had felt that in 2005, I was missing the Nexus, even though I had a letter from the VA Psychiatrist in Phila. that connected my Panic/Anxiety Disorder to the collapsed lungs I had during Active Duty. " Do you have any ratable residuals from the collapsed lung? Did the VA have a copy of that letter? What is the breakdown of the 60% you have now?
  15. I noticed something else-they mentioned a prior exam you had for PTSD, apparently you claimed PTSD and TBI within one year after your discharge.......but neither was diagnosed then......and you did claim the back and knee as well- This is what could be the basis of a CUE for a better EED.If they had, in the older claim, the same evidence they did for this recent decision. Do you have a copy of that older decision and if so can you scan and attach that here? Those exams were in Dec 2015, and the rating decision is dated January 5, 2016. I am having internet problems- high altitude clouds, usual for this time of year ,so I know others will chime in....
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